1. The
appellant brings this appeal by leave of the single judge against his
conviction on 11 counts of a 15 count indictment alleging sexual abuse by him
of his stepdaughter ("the complainant"). The jury had convicted him on counts
1-4 inclusive and on counts 9-15 inclusive and had returned no verdict on
counts 4, 5, 6 and 7. His appeal against sentence has not been proceeded with.
2. Before
considering the issues raised by the appeal we set out the factual background
of the case.
3. The
appellant became acquainted with the complainant's mother in or about the year
1992 and they were married in September 1993. The evidence suggested they may
have lived together for a period or periods of time before that date and after
the marriage they lived together as husband and wife at ... Newtownards until
New Year's Eve of 1993 when they separated. During that period the
complainant's mother was in hospital for some 4 weeks following a road traffic
accident.
4. For
some 6-8 weeks after the separation the appellant resided with his sister, but
thereafter he moved into a flat at ... Newtownards. During 1994 he had two
other addresses in ... Newtownards. He seems to have moved into ... in or
about September 1994 and later in the same year moved to ... where he remained
until the month of March 1995.
5. Even
though the appellant and the complainant's mother had separated at the end of
1993 there were still occasions during 1994 when they appear to have cohabited
at his dwelling.
6. The
complainant made a number of clear and specific allegations of sexual abuse
against the appellant in the course of her evidence and referred to the
following particular matters.
7. She
described an occasion at ... when her mother and the appellant had gone to bed
in the bedroom of the flat and were watching television. She also went into
the bedroom to watch television and as she was cold she got into the bed
between the two adults. Her mother fell asleep and the appellant grabbed her
hand and pulled it over towards his private parts and placed it on his penis.
She pulled her hand away and he repeated it again and she got up and went into
the living room. There she lay down on the settee under a duvet cover and went
to sleep after she had heard the television being turned off. She woke up to
find the appellant sitting at the end of the settee, smoking a cigarette; he
then pulled the duvet away from her, took her pants off and said "You need not
make any noise, I have put sleeping tablets in your mum's coffee and she will
not hear you anyway". Then he put his hands down to her vagina, took his own
clothes off, which consisted of underpants, and had sex with her. She
described this as an act of full intercourse.
8. Two
days later she described another act of intercourse taking place on the settee,
but on this occasion she had not gone into the bedroom to watch television.
She was asked if anything like that had happened again and she said yes it did
happen again and "it happened every chance that he got". She said that it
happened at ... and also at her own home at .... It happened in her own
bedroom in that house.
9. The
complainant was not asked specifically whether she had consented to these acts
of intercourse, but was asked whether she had said anything to the appellant
about it and she replied "Well I cried and I told him to stop. I told him I
did not want it and all the rest of it, but he kept saying ´shut up, you'd
better not tell anybody' and things like that". She also said that intercourse
took place at the ..., but was not asked to be and was not specific about those
occurrences.
10. She
also described an occasion when the appellant engaged in oral sex with her at
the first address which he had in the ... and frequent occasions when the
appellant made her masturbate him. She also, without specifying the occasions,
said that the appellant used to rub her breasts and her vagina.
11. She
said that she stayed at ... when her grandfather was in hospital with a stroke
and her mother was staying in hospital with her grandfather. She stayed for
about two weeks and she said that he would have had sex with her nearly every
day and sometimes he made her have oral sex with him. She described one
occasion when the appellant committed an act of buggery with her. In the
course of this she was crying so much that he stopped and he then turned her
round and had intercourse with her. She had thought that that time was about
October 1994.
12. After
that she returned to ... to reside with her mother and at Christmas 1994
they visited the appellant. A consequence of this visit was that the
complainant spent a number of days with the appellant, contrary to her mother's
wishes. There was a serious row between her and her mother and she went to
stay in ... Children's Home on the last day of 1994.
13. Her
mother was unwell at this time. She suffered from grand mal epilepsy and was
also subject to depression and appears to have been in hospital during part of
the time that the complainant was in the children's home. At this stage there
was a serious estrangement between the complainant and her mother and the
complainant made it clear that she wished to spend her time with the appellant.
She went to visit him on a number of occasions at his home, sometimes with a
friend called L B, and she said that on occasions on these visits he would say
to her "I have to speak to you, it is very important" and then he would get her
upstairs and into the bathroom and would have sex with her there. She could
not remember if it took place anywhere else.
14. She
was not asked by counsel whether she consented to these acts of sex which took
place in the course of her voluntary visits to the appellant's home, but there
was a clear implication that she did not.
15. On
the basis of these allegations the jury was asked to consider the
17 counts of the indictment. Count 1 alleged rape, contrary to common
law, the particulars of the offence being:
16. Counts
2-4 were in similar terms except that each specifically referred to an occasion
other than that charged by the previous count or counts.
17. Counts
5-8 were also framed in similar terms and alleged unlawful carnal knowledge of
a girl under the age of 14 years, contrary to Section 4 of the Criminal
Law Amendment Act 1885 and the particulars in count 5 were as follows:
18. The
ninth count alleged buggery and obviously related to the single incident which
she had described in her evidence. Counts 10 and 11 charged the accused with
inciting the complainant to commit an act of gross indecency with him. Counts
12 and 13 allege gross indecency towards the complainant and counts 14 and 15
alleged indecent assault.
19. The
defence case, which was properly made clear before the commencement of the
cross-examination of the complainant, was that the complainant had invented the
story of sexual abuse, assisted and encouraged by her mother who bore a grudge
against the appellant and that her knowledge of sexual practises arose either
from her own sexual activities with persons other than the appellant or from
her mother's sexual activities and prompting by her mother. The appellant gave
evidence denying any form of sexual misconduct with the complainant.
20. On
behalf of the prosecution, evidence was given by a cousin of the complainant,
Mrs S R, describing occasions when the complainant kissed the appellant
and freely cuddled him, conduct which Mrs R thought inappropriate. Miss B
gave similar evidence.
21. It
is clear that the Crown presented this evidence in order to show a relationship
between the complainant and the appellant which displayed something more
significant to the charges than was consistent with a normal relationship
between a man of almost 50 years of age and the girl who had been his
stepdaughter for a few months.
22. The
appellant also relied on this evidence as being inconsistent with any form of
sexual abuse on his part on the basis that it showed an innocent and
affectionate friendship and in dealing with this matter the learned trial judge
put to the jury the argument advanced by the appellant.
23. Counts
1-4 of the indictment were described by the prosecution as sample counts and no
attempt was made to associate any of the specific allegations of rape made by
the complainant to any of the first four counts.
26. Little
time was taken up by argument in paragraphs 1, 2, 5, 7, 8 and 9 of the amended
notice, a course which we commend, since consideration of the transcript shows
that they are points of no merit.
27. However
the two main points arising from paragraphs 3, 4 and 6 are of considerable
interest and concern aspects of the criminal law which continue to give rise to
difficulties.
Mr
Gallagher QC, who appeared with Mr Boyd for the appellant, argued that it was a
serious irregularity in the proceedings that no attempt was made by the
prosecution or the learned trial judge to relate any particular incident to any
of the individual sample counts. He points out that all the counts apart from
count 9 were sample counts and covered a time span from 1 January 1993 to 4
April 1995 when the complainant would have been between the ages of 11 and 13.
28. He
pointed out that the alleged offences occurred in a number of different places
and involved different types of behaviour, and more significantly that
different alleged offences occurred at various stages of a changing
relationship with the appellant from a point where he can hardly have known her
to one in which they were exhibiting the type of behaviour described by Mrs R
and Miss B.
29. It
is now impossible to say which, if any, incident the jury focused upon when
returning a verdict on any of the sample counts, and impossible to say whether
they were each considering the same incident in relation to any individual count.
30. The
difficulties that may arise when specimen charges are placed before a jury are
discussed in paragraphs 1131 and 1132 of Archbold Criminal Pleading Evidence
and Practice 1998, and have arisen in a number of cases.
31. Difficulties
that may arise in the presentation of evidence in cases involving specimen
counts particularly where sexual abuse is alleged may be found in the following
cases:
R v Farrugia
(The Times 18.1.88). That case involved alleged sexual abuse of four children,
three males and the other a female in which a particular form of sexual
activity which the Court of Appeal referred to as "sandwich" incidents were
described by the children concerned.
32. At
the beginning of the case counsel for the accused sought to discover in
relation to each of the four counts in the indictment precisely which incident
was involved and after some discussion counsel for the prosecution identified a
specific incident as being relied upon on each count.
33. None
of the four specific incidents relied upon was a "sandwich" incident. The
Court of Appeal commented that when the learned judge came to sum-up the case
to the jury he made no reference whatever to any of the events described by any
of the children which was allegedly related to any count in the indictment and
Mr Justice French remarked:
34. It
is clear from the transcript that the error of the learned judge in that case
was to fail to direct the jury to consider the relevant parts of the children's
evidence which related to incidents specifically chosen by the prosecution as
relating to the specimen counts. The problem was compounded by the requirement
for corroboration which existed at that time and the need to relate the
corroboration to a specific offence.
35. The
decision in the case therefore turned on failure to direct the jury's mind to
the specific matters on which issue had been joined.
38. It
is clear from the judgment that in relation to girl A two different categories
of indecent assault were alleged as having occurred on numerous occasions and
that the count in the indictment did not specify which category was relied upon
as the basis for that count. The court found no difficulty with this and no
specific objection to that course seems to have been taken either in the course
of the trial or before the Court of Appeal.
39. Eight
counts were left to the jury of which the accused was convicted on four and
acquitted on four. Evans LJ said at page 7 of the transcript of the judgment:
42. It
was held, allowing the appeal with respect to the specimen counts, that an
indictment needed to be so drawn or exemplified that a defendant would know
with as much particularity as the circumstances of the case would admit what
was the case he had to meet and also so that the judge, in the event of a
conviction, would know precisely what it was that the jury had found proved;
that it should not be too difficult in most cases, and would not have been in
this case, to settle an indictment which steered a safe course between
prejudicial uncertainty and overloading by, say, alleging a rape on a day
between the complainant's one birthday and the next, since the difficulty in
being precise in every respect was not a reason not to be as precise as
possible: and that, where an indictment did not charge certain offences
revealed in the statements, it was not an intervention outwith the proper role
of the judge that the initiative for the additional counts came from him; but
that if a defendant chose to meet general charges without objection he could
not easily raise want of particularity in the Court of Appeal.
43. We
would make some general observations of general application to cases involving
the use of specimen counts to cover a series of repeated offences:
44. There
is no doubt that in the present case, since the offences took place over what
is for this kind of offence a comparatively short period and since the
complainant was comparatively mature during that period, specific incidents
could have been isolated and identified in the indictment. It is our view that
it was an error not to proceed in that way. However, the question for this
court is whether the fairness of the trial has been compromised by the course
followed by the prosecution. The course adopted by the defence during the
trial is also relevant and important.
45. On
a review of the trial it is clear that the appellant suffered no prejudice
whatever as a result of the manner in which the prosecution case was presented.
Through his counsel he was able to examine in detail the specific occasions
referred to by the complainant and to illustrate inconsistencies between her
evidence in court and the statements made in the course of her video recorded
interview with Detective Constable Darling.
46. There
was sufficient particularity in the evidence which she gave about the course of
events over the period covered by the indictment to allow her account to be
closely examined for discrepancies as to dates and different circumstances of
the parties which gave the defence the opportunity, if it could, of showing her
evidence to be inaccurate eg as to the occupation of a particular residence by
any of the parties, at a relevant time.
47. It
does not seem to this court to be surprising that counsel for the appellant did
not ask for particularisation of the indictment or for specific alleged
offences to be linked to specific counts.
48. The
true issue between the parties was whether the complainant was telling the
truth or was inventing the charges against the appellant. That issue would
have been much more difficult to determine if the evidence had been confined to
a number of specific events. In a case involving persistent sexual abuse of a
child it is imperative that the jury has evidence of the course of conduct
during the period under review and it is clear that the appropriate course is
to choose a number of sample or specimen charges to illustrate that course of
conduct, and for the jury to hear the totality of the complainant's account of
the alleged abuse, in the interest of both prosecution and defence.
49. It
must be a matter of fact and degree in any given case whether each incident
requires to be particularised or not. It is not difficult to imagine a case
where it would be impossible to particularise any specific incident and it
cannot be said that there is a difference in principle between a case where a
child is unable to particularise any incident but is able to give evidence of a
general course of conduct involving sexual abuse and a case in which a child is
able to particularise some of those incidents.
50. The
definitive question for this court is whether the conviction is safe. The real
issue was not how often or in what circumstances sexual abuse might have taken
place but whether the appellant had engaged in a course of conduct involving
sexual abuse over the period covered by the indictment. It is clear that the
jury believed the complainant and rejected the evidence of the appellant.
51. In
our view, therefore, it was appropriate to conduct the case by reference to
sample counts, and that, in the absence of a request or requirement by the
defence for particularisation of the counts in the indictment, no injustice or
prejudice was suffered by the appellant from the course of the trial.
52. The
second main point in the appeal, which is not unconnected with the first, is
that since there was a time that the complainant was behaving affectionately
towards the appellant, evidence existed which required the learned trial judge
to direct the jury that a defence of consent should be available to the accused
in respect of any rape charges which related to that period of time.
53. Mr
Gallagher submitted that since there was no specification of the sample counts
all of the convictions on counts 1-4 might apply to the period when the
complainant was visiting the appellant at his home.
54. There
is no doubt about the existence of a duty on a trial judge in certain
circumstances to put before the jury any matter of defence which arises in the
evidence even though it has not, as it was not in this case, raised by the
defence.
55. This
is particularly so in the case of a potential defence of provocation because of
the wording of Section 7(1) of the Criminal Justice Act (Northern Ireland) 1966
which provides that where there is evidence on which the jury can find that the
person charged was provoked the question "shall be left to be determined by the
jury". The judge is precluded from making his own assessment of the cogency of
the evidence but is required to leave the matter to the jury where any such
evidence exists.
56. The
principle has been applied in cases involving defences other than provocation.
It may apply even to a defence which is specifically disavowed by the accused.
The interests of justice clearly require that an accused is convicted of the
crime which the evidence shows that he has committed and no other and that he
is acquitted in circumstances which provide a legitimate defence.
57. To
ensure this result the judge's duty is to so instruct the jury that they are
able to decide upon the proper verdict which correctly reflects their view of
the facts. Thus if the Crown alleges murder and the defence relies on self
defence and if on the facts it may be open to the jury to come to the
conclusion that the defendant committed the actus at a time when he had lost
his self control by reason of provocation then the members of the jury require
to have a direction which enables them to know that a verdict of manslaughter
is available.
58. It
is to be borne on mind that the facts are for the jury and the jury is entitled
to take any view of the facts properly open to it. It is not necessary for the
trial judge to discuss with the jury every possible interpretation of the facts
especially in relation to a set of circumstances upon which both prosecution
and defence have advanced an interpretation.
59. It
thus seems clear from that passage that the principle may apply even where the
alternative is totally inconsistent with the accused's main line of defence.
It does appear however, that the duty only comes into play where there is
sufficiently cogent evidence to raise the alternative defence to place it
before the jury and the Court must consider what is fair in all the
circumstances.
60. There
was evidence adduced by the Crown that during at least part of the period when
the complainant was being allegedly subjected to acts of rape she was openly
and physically affectionate to the appellant behaving in what was described by
one witness as an unnatural way with him, and sought out his company in
circumstances in which he was likely to make sexual advances to her. This was
a matter which might lead a jury to draw the inference that the appellant
believed or might believe that the complainant was consenting to the acts of
sexual intercourse instigated by him. The learned trial judge did refer to the
complainant's acts of affection telling the jury that they might think it
strange that if the complainant was suffering the sexual abuse she says was
happening to her then she should have shown this affection for the perpetrator.
This was the interpretation which the defence were seeking to put on the acts
of affection. This direction, however, did not focus the jury on the question
whether the complainant by her acts and conduct might have led the complainant
to believe that she was consenting to sexual intercourse.
61. However
we take the view that in the circumstances of this case no special direction
was needed in relation to the period when there were overt signs of affection
or sexual attraction shown by the complainant to the appellant.
62. The
evidence of affectionate behaviour was referred to by the learned trial judge
as of some possible assistance to the appellant on the issue of credibility of
the complainant which was the true issue between the parties. Mr Gallagher
contends that he should also have referred to it in the context of the
relationship between the parties and suggested that it was an attitude
consistent with consent to sexual intercourse or at least with the existence of
a belief on the part of the appellant, that did not amount to a reckless
belief, that she was consenting to intercourse with him.
63. In
appropriate cases judges have as a matter of regular practice directed that if
the jury thought the defendant might have genuinely believed that the
complainant consented even though he was mistaken in his belief they should
find him not guilty of rape (see
R v Satnam
and Kewal
78 Cr. App. R. 149).
64. In
that case the complainant and the defendant give inconsistent accounts of the
incident. The complainant's version, if accepted, would have established that
the defendant could not have supposed that she consented for she said she had
screamed and struggled and the defendant had put his hands round her throat to
silence her. The court held that on the facts of the case once the jury came
to the conclusion that the complainant did not in fact consent and that she was
telling the truth about the matter there was little of any room for any further
conclusion that the defendant might have been labouring under any honest but
mistaken belief. The judge was accordingly correct in that case in concluding
that a direction on mistaken belief was not necessary.
65. The
matter was the subject of consideration by this court in
R
v Taylor
[1998] NIJB 88 where at 91 Carswell LCJ stated:-
66. The
evidence of the complainant's acts of affection and the seeking out of the
appellant related to a period subsequent to the initial two acts of sexual
intercourse and there was no cogent evidence to suggest that when the appellant
carried out those initial acts of sexual intercourse the complainant (who it
must be remembered at that stage was only 11 years of age) was doing anything
which could have led the appellant to believe that she was consenting to the
sexual intercourse. The jury were directed to consider whether she had
consented to the acts of sexual intercourse and to take into account her young
age when looking at the question. If there was a duty to give the suggested
direction the failure to mention the possibility that the defendant might have
believed she was consenting thus has resulted in no injustice in respect of the
convictions on the counts relating to those acts, as the jury could not tenably
have regarded any acts of the complainant as giving rise to possible grounds
for the mistaken belief on the part of the appellant that she was consenting to
sexual intercourse. The same goes for the sexual intercourse which immediately
followed the act of buggery.
67. As
far as the fourth count is concerned it is not possible to identify what act
was covered by the conviction. The issue of the appellant's possible belief in
the consent of the complainant was a live one in respect of which an
appropriate direction would normally fall to the jury in relation to the issue
of whether the appellant might genuinely have believed that the complainant was
consenting to the sexual intercourse unless there was some other circumstances
in the case which made the giving of such a direction inappropriate.
68. The
passage from
R
v Taylor
set out above makes clear that in framing his direction to the jury the trial
judge must consider whether in the light of all the evidence it would be fair
to give such a direction. The appellant in this case presented his defence as
a complete denial of any sexual misconduct. On the charges of unlawful carnal
knowledge, buggery, gross indecency and indecent assault the consent of the
complainant was not relevant and would have provided no defence. To have
raised the question of consent in the way now suggested by the appellant in
respect of the rape counts might have been perceived as weakening the
appellant's defence on the other charges and there is little doubt that the
defence would have been vigorously opposed to the giving of such a direction.
Having regard to the way in which the defendant decided to run his defence in
the particular circumstances of this case in the light of the nature and number
of the charges, we do not consider that the failure to give the jury the
suggested direction was unfair or has resulted in any injustice to the
appellant.
69. The
jury had been given the necessary legal directions to guide them towards an
acquittal if they took the view that in respect of any of the acts of sexual
intercourse between the parties there had been consent on the part of the
complainant. In our view it is sufficient that the jury is aware of the
appropriate verdict which reflects the view taken by them of the evidence. The
factual conclusions are a matter for the jury and on matters of purely factual
inference it is not necessary for the trial judge to refer to every possible or
conceivable point of defence that may exist, but which has not been raised by
the defence.
70. The
particular evidence upon which the appellant relies was given an interpretation
by both prosecution and defence and if the learned trial judge had sought to
put a different interpretation upon it he would thereby have diminished the
effect of counsel's submissions.
71. Where
a possible ground of defence exists which the defence for tactical reasons
decides not to refer to before the jury then defence counsel should raise the
matter with the judge in the absence of the jury and request him to deal with
the issue. Otherwise, the Court of Appeal may be left with the impression
that the judge has been expected to detect a possible line of defence that did
not occur to defence counsel or which the defence deliberately and advisedly
did not raise.
72. We
are satisfied that the general direction given by the learned trial judge was
adequate to alert the jury to the need to be satisfied that in each case of
allegation of rape it had to be proved beyond a reasonable doubt that the
complainant had not consented. It was open to the jury to put whatever
interpretation they thought right on the evidence of the familiarity between
the complainant and the appellant. In our view it was not for the judge to put
an interpretation upon it which neither party urged.
73. We
are satisfied that there was no irregularity in the trial and no misdirection
or failure to direct the jury on any relevant issue and that the conviction is
safe and accordingly dismiss the appeal.